Copley v Brisbane City Council [2003] QLC 31

LAND COURT OF QUEENSLAND CITATION: Copley v Brisbane City Council [2003] QLC 31 PARTIES: Gregory Charles Copley (applicant) v Brisbane City Council (respondent) FILE NO: VC2002/0084 DIVISION: Land Court of Queensland PROCEEDING: Appeal against categorisation under the City of Brisbane Act 1924 DELIVERED ON: 8 May 2003 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Dr NG Divett ORDER: At the relevant period of 1 January 2002 the subject land should be categorized as Category 2 (shop with attached caretaker’s flat). CATCHWORDS: Categorization for differential rating – Criteria adopted – Land use codes – Use of the land – City of Brisbane Act 1924 Categorization for differential rating – Advice by employee – Exercise of statutory responsibility and of judgment by employee – City of Brisbane Act 1924 APPEARANCES: Mr GC Copley for the applicant Mr Morzone (Brisbane City Council Legal Practice for the respondent) -- 1 of 17 -- 2 Background: [1] This matter relates to land at 5 Abbot Street, Camp Hill, and described as Lot 1 on RP 826258, Parish of Bulimba. The subject land has an area of 395 m² and is located at the corner of Abbot Street and Brooks Street, with frontages of approximately 16 metres to both streets. The matter relates to an appeal by Mr Copley (the appellant) against the categorisation of the land by the Brisbane City Council (the respondent). The subject land was zoned at the relevant date of 1 January 2002 as Multi-Purpose Centre MP4, under the business zone of the superseded Town Plan of 1987. The new City Plan 2000 was effective from 30 October 2000. [2] The appeal relates to the categorisation of the subject land for the purpose of making and levying differential general rates for the quarter commencing 1 January 2002. The respondent determined that the appropriate category for the subject land was Category 2. The appellant argues that the land should be included in Category 1. The respondent issued a rate notice to the appellant on 8 January 2002. Following an objection from the appellant on 24 March 2002, the respondent confirmed on 10 May 2002 that Category 2 was the appropriate designation. The appellant then appealed to this Court on 21 June 2002. At a preliminary hearing on 11 November 2002 an application for an adjournment by the appellant was approved, and the merits of the matter were heard on 5 December 2002. [3] Gregory Charles Copley appeared and gave evidence on his own behalf. Mr E Morzone of Counsel, instructed by Brisbane City Council Legal Practice, appeared for the respondent. With the agreement of the parties, a joint inspection was undertaken. The Nature of the Land – [4] The subject land is a rectangular parcel situated about 100 metres west of the Whites Hill Primary School and the Whites Hill State College). The land falls gently from east to west, and is occupied by a single level shop and adjoining residential unit. The subject land is about 600 metres south of Old Cleveland Road, which is a major traffic route connecting to the Carindale Regional Shopping Centre. The subject land is adjoined to the east by a small group of local shops in a small convenience shopping centre extending to Burn Street. Mail to the subject property is delivered to a private mail box in the gate leading to the residence area at the rear of the shop front. [5] The shop front has been in existence since the late 1950s, well prior to October 1991 when it was purchased by the appellant. A development approval for business premises was approved by the Council on 3 August 1992. (Exhibit 2, page 53). Since that time Mr -- 2 of 17 -- 3 Copley advises that it has only been occupied for three of the 13 years that he has offered the property for lease. Mr Copley attributes that lack of use to its location in a side street well removed from major passing traffic flows. In an effort to make the property more attractive to prospective tenants, Mr Copley sought Council’s approval to build an attached residential unit to the rear and side of the existing shop front in 1997. Pursuant to that application the Council approved the development of a “caretaker’s flat” attached to the shop on 3 June 1997. (Exhibit 2 page 24). The floor layout of that “caretaker’s flat” was for a two bedroom unit in accordance with the approved plan 97-02/01-01 (see Exhibit 3, annexure H). Access between the shop and the caretaker’s flat occurred through a door at the rear of the shop. The Grounds of Appeal – [6] In presenting his case the appellant sought orders which may be summarized as follows: (i) that the rating category for the subject land be changed from Category 2 to Category 1; (ii) that a new rate category for area classification multi-purpose centre (MP4) be introduced for all properties which are vacant; (iii) alternatively that the respondent charge rates for vacant shops under Category 1; (iv) that the respondent Council be prohibited from charging an additional service charge for the second toilet within the attached residence area; (v) that the Council charges for the second toilet be refunded to the appellant; (vi) that the rates charges by the Council since 16 October 2001 be reassessed under Category 1 from 21 September 1999 to 30 November 2001; (vii) that rates for the subject land be determined under Category 1 for the period 21 September 1999 to the date of publication of the amendment of Brisbane City Plan 2000, which amended the subject land from Low Medium Density Residential Area to Multi-Purpose Centre (MP4). [8] Mr Morzone resists the above requests noting that the jurisdiction of this Court relates only to the matter of whether the subject land has been correctly categorized at the relevant date. Mr Morzone argues that an objection by the appellant against the imposition of sewerage and water charges is not provided for under the City of Brisbane Act 1924, which specifically only makes provision in respect of the levying of charges in respect of a differential general rate. In that regard he notes s.86 of the Act, which provides for an owner to object to the Council in respect of the appropriate categorization of the land. In the event the objection is not approved, the owner may then appeal to this -- 3 of 17 -- 4 Court under s.89(1) of that Act. On hearing the matter this Court may then determine the appropriate categorization of the subject land under s.91(1). [9] In considering the above request for orders of the Court, I find that the respondent Council has the power to make and levy rates and charges under s.48 of the Act; and for utility charges for sewerage and water under ss.52 and 58. An owner of land is liable to pay those rates and charges under s.62. The only provision made for appeal against the rating register of the Council is in respect of the categorization of the land under s.89 as above. On that basis I dismiss the request for orders by the appellant, except for the request for recategorization from category 2 to Category 1 (Item (i)). The remaining matters, if applicable, are really matters that may be pursued in another place. The History of the Appeals – [10] At the heart of this matter is a long history of discontent by the appellant with the processes and actions of the respondent. Mr Copley, who has been an elected Councillor in another local government, has personal experience of the processes of some local governments. He argues that his experience in communicating with the respondent Council has been less than satisfactory, particularly in respect of the provision of documentation by the Council. [11] Mr Copley is concerned with what he sees as some inadequacies in the existing Brisbane City Act 1924, in respect of the provision of natural justice under the Act. Mr Copley has experience in another area of community activity, where he feels natural justice is an issue more appropriately addressed. Any perceived inadequacies in any Act of Parliament are not relevant in the current matter, and are not therefore for my consideration. However an explanation of Mr Copley’s concerns helps in understanding the positions of the parties. [12] Following his purchase of the subject shop in 1991, Mr Copley unsuccessfully tried to lease the shop, while being responsible for full rating charges as a “commercial” category (Category B). His advice from the Council in June 1996 was that the presence of the shop mitigated against the subject land being categorized as a single unit residential purpose. Following a succession of correspondence from the Council at the highest level, Mr Copley was unable to resolve his difficulties. [13] In 1997 Mr Copley subdivided the land, and abandoned his previous development approval in 1992 for a “Business Centre” for the whole site (formerly Lots146 on RP 45158). Mr Copley then subdivided Lot 146 into Lots 1 and 2 on RP 826258 in 1997, and successfully sought approval to build a “Caretaker’s flat” upon Lot 1, adjoining the -- 4 of 17 -- 5 existing shop front. (See paragraph [5]). The floor area of that old shop was 60 m² and the new caretaker’s flat was 150 m². Mr Copley notes that Council records confirm that the subject land had previously been rated as a residential dwelling during the period commencing 1 June 1998. (Exhibit 3 Annexures J and Q), at which time the shop had been unoccupied. However on 24 March 1998 the shop was reoccupied, and the rating returned to a Business category. (Exhibit 2, page 7). [14] Mr Copley also has concern with the application fee for his building plans in 1997, which were assessed as an extension on a business zone parcel. However that fee was in line with the then current categorization and planning of the subject land, and is not an issue for resolution in this matter. However it assists in clarifying Mr Copley’s concern with what he believes is an arbitrary and unjust approach to his concerns by the Council. [15] On 21 May 1999 Mr Copley was advised by a senior Council officer that, due to a mapping error on the plans accompanying the proposed Draft City Plan, then on display until late 1999, the subject land had inadvertently been designated as included in the Low Density Residential area, rather than in its appropriate zone as business zone. The letter advised that steps to overcome that deficiency were being put in place to rectify the error. Mr Copley accepted that advice assuming that no further action was required by him to ensure that the mistake would be rectified. [16] However following several unsuccessful attempts to sell the subject land as a potential business site, Mr Copley became aware that the mapping error had not been rectified. Accordingly the Brisbane City Plan 2000 had been gazetted, and the Council’s records and advice to prospective inquirers, maintained with the incorrect zoning for the subject land. Mr Copley wrote to the Council on 13 September 2001 requesting that the error be rectified, and was advised on 14 September 2001 that the matter would be attended to as soon as possible. That was confirmed again by Council on 1 October 2001, and again on 25 October 2001, which also confirmed that any applications in respect of the subject land would be treated as if the land was Multi-Purpose Centre - Convenience (MP4). The Council approved the change of zoning back to MP4 on 16 October 2001, and it was subsequently gazetted accordingly. [17] Mr Copley places some reliance upon advice he received from an employee rate inspector Mr M Judd, when Mr Judd visited the subject land in early 1998. Mr Judd apparently advised Mr Copley that the subject property would be assessed on a residential basis, as the property was at that time only used for residential purposes. When the shop subsequently became occupied in March 1998, Mr Judd advised that the rate would then be changed to the business use. However a complete search of the Council’s files could -- 5 of 17 -- 6 not locate any reference of any letter either signed by Mr Judd, or prepared for signature by Mr Judd in respect of that purported advice to Mr Copley. [18] The only evidence of such an advice lies in a photocopy supplied at the preliminary hearing on 11 November 2002, reputedly in Mr Judd’s handwriting, suggesting that Mr Judd’s inspection occurred at 12.21 pm on 15 September 1997. A notation suggested that if the sign on the shop was removed, then a classification of Residential Home Activity might be appropriate. That understanding was not substantiated, either by Mr Copley or Mr Judd, who was not subpoenaed to appear the hearing. However, as those matters are several years prior to the relevant date of the objection at 1 January 2002, they really have no relevance to the current matter, as they relate to a period of previous budget considerations by the Council. [19] In respect of whether Mr Copley can gain some support from a previous advice by an employee of the Council (Mr Judd), I am also directed by Mr Morzone to the findings of the High Court of Australia in Attorney General for the State of New South Wales v Quin (1989-90) 170 CLR 1. In that matter Mr Morzone advises that the Court found that it was not appropriate for any action undertaken in a previous period to prevent a subsequent action by a statutory body, which is empowered to make that subsequent decision. Mr Morzone notes that the Council was empowered under s.48 of the City of Brisbane Act 1924 to determine a resolution for the setting and levying of rates and charges. That power is unfettered in that respect, and any previous decision would not curtail the Council from issuing the criteria upon which rates and charges would be determined for the period 2001 to 2002. [20] I note that in the Quin matter the High Court followed guidance among others in Lever (Finance) v Westminster Corporation (1970) 3 All ER 496. In that matter Lord Denning MB considered a matter where a planning officer had provided verbal advice to a developer, which subsequently was found to be in conflict with the previous former planning approval by the Council. On being made aware of the variation to the location of a dwelling, which had been the subject of the verbal advice from the planning officer, the Council had later refused the second application by the developer to amend the original approval by the Council. It was noted that it was a practice of that Council to allow its planning officers to decide whether proposed minor amendments were material or not, and thus whether such amendments needed further Council permission. [21] In his decision Lord Denning said at p.500: “I know that there are authorities which say that a public authority cannot be estopped by any representations made by its officers. It cannot be estopped from doing its public duty. See, for instance, the recent -- 6 of 17 -- 7 decision of the Divisional Court in Southend-on-Sea Corpn v Hodgson (Wickford) Ltd. [1961] 2 All ER 46. But those statements must now be taken with considerable reserve. There are many matters which public authorities can now delegate to their officers. If an officer, acting within the scope of his ostensible authority, makes a representation on which another acts, then a public authority may be bound by it, just as much as a private concern would be.” Lord Denning noted that the planning officer who provided the incorrect advice to the developer, had lost the official file, and had made a mistake in concluding that the amendment to the building location was not a material change in the approval. While that mistake had caused a problem for the neighbour, who now raised an objection, Lord Denning rejected that it was such a mistake as to cause the developer to suffer further costs in rectifying the variation to the original approval. [22] In the current matter I see some analogy with Lever (Finance), in as much as Mr Judd apparently had approved the categorization of the subject property for rating purposes as a residential property for the period during which the shop was not occupied. However that rating assessment was returned to Category 2 (shop) again once the shop was reoccupied. While Mr Judd’s advice may have been a mistake at the time, in view of the current land use code approvals, it did not set a precedent to overturn the discretion already established by the Council. As noted, the Council cannot be estopped from doing its public duty, which it demonstrates by establishing its rates and charges criteria in accordance with the City of Brisbane Act 1924. [23] The matter of whether a statutory authority could exclude itself from its discretionary powers conferred under legislation, was also addressed by the High Court in Ansett Transport Industries (Operations) Pty Limited v The Commonwealth (1977) 139 CLR 54, where Mason J (later CJ) said at p.74: “There is a general principle of law that a public authority cannot preclude itself from exercising important discretionary powers or performing public duties by incompatible contractual or other, undertakings (Ayr Harbour Trustees v Oswald (1883) 8 APP CAS 623).” In that matter the High Court also noted the findings of Rederiaktiebolaget Amphitrite v The King (1921) 1 All ER 542, where Rowlatt J, in considering whether the government was bound by an undertaking to act in a particular way, said at p.545: “That is, to my mind, not a contract for the breach of which damages can be sued for in a court of law. It was merely an expression of intention to act in a particular way in a certain event. My main reason for so thinking is that it is not competent for the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the -- 7 of 17 -- 8 question arises. It cannot by contract hamper its freedom of action in matters which concern the welfare of the State.” [24] In the current matter I believe that it would not be relevant for the respondent Council to be bound by any action which was not a legal contract, when it exercised its subsequent discretion in respect of the resolution of rates and charges for the period 2001 to 2002. [25] The matter of whether the actions of a planning officer in agreeing to an existing established use right for an old disused factory building, could be grounds for overriding the subsequent refusal by the Council itself for any alterations to proceed, was discussed in Western Fish Products Limited v Penwith District Council and Anor [1981] 2 All ER 204. In that matter Megaw LJ, when speaking about whether the Council could be estopped in exercising its statutory responsibility to exercise its discretion in respect of subsequent approval of an application to affect the works, held as follows at p.205: “In any event, an estoppel could not be raised to prevent a statutory body exercising its statutory discretion or performing its statutory duty, and therefore, even if the Council’s officers while acting in the apparent scope of their authority had purported to determine the plaintiff’s planning applications in advance, that was not binding on the Council because it alone had power under the 1971 Act to determine the applications. Furthermore, although a planning authority might be bound by the decisions of an officer if the power to decide the particular matter had been, or appeared to be, delegated to the officer, for an estoppel to arise in such circumstances there had to be some evidence, over and above the mere fact of the officer’s position, on which the applicant was justified in thinking that the officer’s statement would bind the Council. Since there was nothing, apart from the position held by the planning officer, on which the plaintiffs could have assumed that the officer could bind the Council, the Council was not estopped by anything the planning officer had said from refusing the plaintiff’s application for planning consent.” [25] At the relevant date of 1 January 2002 the subject land was agreed to be zoned as MP4, and categorized accordingly as Category 2 (shop). On 11 October 2001 the appellant made an application to the Council for development approval to change the use of the caretaker’s residence to a restaurant and coffee shop, including kitchen and seating areas. (See Exhibit 2 pages 148 and 261). Mr Copley advises that application was part of a move to try and sell the subject property, which had been demonstrated by a prolonged vacancy to have no commercial value as a shop. However on 7 January 2002 the Council refused the application to allow relaxation of car parking provisions, required under s.24.5 of the superseded Town Plan. [26] If I seek further to ascertain whether Mr Copley could have placed some reliance upon the former actions of the Council employee, by reducing the category to residential use for a short period while the shop was unoccupied, as demonstrating some wider suggestion that -- 8 of 17 -- 9 where a shop is vacant then the Council should reconsider its categorization, I consider whether the Council may have had some wider liability under any general reliance upon a duty of care to the public. The matter of duty of care to the public was questioned by the High Court in Pyrenees Shire Council v Day [1997-98] 192 CLR 330. In that matter Brennan CJ said at p.344: “If the ‘general expectations of the community’ were to be the touchstone of liability, the proof of that fact would present considerable difficulty. The test seems to invite consideration of a general expectation of the exercise of a statutory power rather than an expectation referrable to particular circumstances which might invite consideration of an exercise of the power. If community expectation that a statutory power will be exercised were to be adopted as a criterion of a duty to exercise the power, it would displace the criterion of legislative intention. In my respectful opinion, if the public law duty of a public authority to exercise a power is relevant to its liability in damages for a failure to exercise that power, the appropriate criterion is legislative intention. I am respectfully unable to accept ‘general reliance’ as the basis of such a liability.” I believe the decision of Mr Judd, for whatever reason, did not reflect any general reliance to the broader community, and merely reflected an error of judgment by the employee at that time. [27] In the current matter there is no evidence provided of any actions for contractual obligations by any of the respondent’s officers that could be seen to bind the Council in its later decision affecting the subject land. [28] Mr Copley appealed against that decision to the Planning and Environment Court on 6 February 2002, and on 4 October 2002, Quirk J allowed the appeal, extending the time for Mr Copley to provide written notice to the Council in respect of why the parking requirements should be relaxed for the subject development, to allow only certain car parks upon the site. The final approved plan for development by Quirk J reflected the development conditions outlined by the Brisbane City Council development approval package (Exhibit 2, page 289). From 4 October 2002 the subject property is seen to be as a restaurant under the Town Plan. [29] In summarizing the history of this property, it is clear that Mr Copley would appear to have been the unfortunate recipient of several advices by officers of the respondent Council, which have caused some concern to the appellant. Mr Copley’s previous experience with an apparent lack of provision of documents associated with another local government in Beaudesert, would appear to have also contributed to his apprehension that the respondent Council was somewhat lethargic in responding to his concerns in respect of the subject land. However whatever might be the facts of any such perceived problems between the parties prior to this hearing, those are not matters for resolution before this -- 9 of 17 -- 10 Court. The sole matter before me for decision is what is the correct category under which the subject land should be liable for rating purposes for the quarter commencing 1 January 2002. [30] Mr Copley has unsuccessfully sought relativity with the property opposite the subject land at the corner of Brook Street and Abbott Street. He notes that parcel of approximately the same area as the subject land is rated at only about one half of the rates on the subject land. However that land has a different zoning and category, and direct comparisons are not relevant. Impact of Planning – [31] It is agreed that at the relevant date of 1 January 2002, and until the present date, the subject land has continued to be zoned for a business purpose under the current planning ordinances. The apparent error in designating the subject land as Residential Low Density area was rectified by a formal decision of the Council prior to 1 January 2002. During the period of about 2½ years from May 1999 till October 2001, while the subject land had been inadvertently designated as Residential Low Density, the appellants had paid rates charges at the rate applicable to Category 2 (shop). [32] Under the Town Plan of 1987 the formal zoning of the subject land from May 1999 until October 2000 would have continued to have remained Business until the new City Plan 2000 superseded it. However the error in the draft City Plan continued over into the formal City Plan 2000 from October 2000. Hence the actual zoning of the subject land was in effect Business until October 2000, changing then to Residential Low Density from October 2000. However in respect of any likely purchaser of the subject land between May 1999 and October 2000, the supposed intentions of the draft plan would have been matters that a prudent buyer would have contemplated. (Stubberfield v Valuer General (1988-89) 12 QLCR 328 at 340 per Carter J). While the notations on the zoning map was admitted by the Council to have been in error at that time, its force in law would have been taken to reflect its actual zoning under the relevant Town Plan effective at any time. [33] Under the 1987 Town Plan the Business zoning was intended to provide for retailing and personal services in shopping centres other than those of a purely local and convenience nature. However other uses without the consent of Council could include small scale service facilities with a low impact on surrounding areas, and where the activity was a limited floor area. The subject land clearly satisfies that later description, and was a permitted development as a shop. -- 10 of 17 -- 11 [34] When the zoning under the City Plan 2000 took effect as Residential Low Density, the permitted use of the subject land changed in line with the perceived permitted development for detached housing. The equivalent zoning for Residential Low Density use in the previous 1987 Town Plan was for Residential A purposes. Under that zoning shops with a gross floor area greater than 500 m² were a prohibited use. However a shop the size of the subject property would have been a permissible use subject to Council consent. Continuance of the existing use of the shop, even if it was a “non-conforming use” of the land, was still protected under the planning legislation. On that basis there was nothing to prohibit the use of the subject building as a shop during the period of the City Plan 2000, until the plan was amended on 16 October 2001. [35] Now while that understanding may be of assistance to Mr Copley in his concerns that he has been unjustly assessed for rating purposes in the past, they are of no consequence in the current matter. The only relevant planning issue at 1 January 2002 is that the subject land was zoned as Multi-Purpose Centre – Convenience (MP4). Under that land use the property could be used either as a shop, or subject to Council approval, as a restaurant. Mr Copley agrees with those potential uses. [36] In respect of the use of the subject land for business purposes under the 1987 Town Plan, Mr Morzone draws my attention to the table of development, which defines that the erection of a either “caretaker’s flat”, or a “detached house” within that business zone, could only be undertaken with the consent of the Council as a permissible development. Without the consent of the Council, the use of the residence attached to the shop on the subject land as other than an approved caretaker’s flat would be an unlawful use of the land. It is also noted that because of its relatively large floor area compared to the area of the existing shop, the attached residence could not be considered as a “minor building work” under the plan. At 1 January 2002 the use of the attached residence on the subject land was for the approved purpose of a “caretaker’s flat”. [37] In seeking understanding of the meaning under those definitions, I find: “Caretaker’s flat means – (a) a dwelling unit used or intended for use as the residence of a person having the care of any premises, including any plant or other goods thereat, where – (i) that dwelling unit and those premises are contained in the same planning unit; and (ii) those premises are used for some non-residential purpose which is not some agriculture or stable; or -- 11 of 17 -- 12 (b) that dwelling unit contained in a building or part of a building which building or part comprises a dwelling unit combined with, and constructed to be occupied with some place or area used for some non- residential purposes. Any use of a caretaker’s flat forms part of that use for some non- residential purpose of those premises in connexion with which it is used.” [38] If I go then to the meaning of “detached house” I note that it means a dwelling house used or intended for use for residential purposes by a family, but does not include relevantly any caretaker’s flat. Clearly under the 1987 Town Plan the use of a “caretaker’s flat” in conjunction with an attached shop, is different to any use of the separate residence as a detached house. Under the planning approval by the Council for the subject land, the use of the attached residence can only be in conjunction with the shop, and not as a separate stand-alone dwelling unit. [39] If Mr Copley was to seek a separate approval to use the entire shop and attached residence entirely as a detached house, then he would most likely need to seek rezoning of the subject land from Multi-Purpose Centre – Convenience (MP4) to Residential Low Density. He would also need approval for the existing shop front to be included within the overall designation of a residence, and not as a shop. That may have been the intentions of Mrs Lund from the Council when she offered advice in respect of removing the presence of the shop in 1996. Perhaps her advice was more directed to the use of the old building as part of a residence rather than the demolition of the structure. But in any case those thoughts are merely speculation at this time, and not directly relevant to the purpose of categorization of the land. [40] If I then consider the definitions under the City Plan 2000 I note: “’Caretaker’s flat’ – an ancillary use of a part of a premises for residential occupation by a person or a domestic group that includes the person who has the care of a business or industry activity on the premises. Any use of a caretaker’s flat forms part of that use for some non- residential purpose of those premises in connection with which it is used and does not constitute a mixed use development.” Clearly the new City Plan 2000 maintains the requirement that the use of the residence in the “Caretaker’s flat” must be in conjunction with and form part of some non-residential purpose. [41] If I also seek clarification of the definition of Multi-Purpose Centre – Convenience (MP4), I note that it is defined in the City Plan 2000 to mean a smaller centre providing local services within walking distance of residences, and generally containing less than -- 12 of 17 -- 13 6,000 m² of gross floor area, and developed on a scale consistent with the surrounding residential development. The Use of the Land – [42] While the history of occupation of the subject land has demonstrated a very infrequent occupation rate; what must be contemplated is the reasonable perception by the Council as to what use it could be anticipated to demonstrate. To seek guidance in that matter I refer to the Council’s resolution of rates and charges for the period commencing 1 July 2001 to 30 June 2002. (Exhibit 2, page 42). I am also provided with the subsequent resolution for the period 1 July 2002 to 30 June 2003. (Exhibit 2, page 68). In the resolution of rates and charges 2001 to 2002, which covers the categorization period at 1 January 2002 to 31 March 2002, I note that Category 1 land is defined under the general criteria as being the sole purpose only to be used for residential purposes; and where it contains a single unit domestic dwelling, that must represent the principal place of residence of at least one person who is the owner of the land. The specific criteria, which must be subject to the general criteria, goes on to provide relevantly that it includes among others the land use code 02 Single Unit Dwelling. [43] If I look then at Category 2 I note that relevantly specifies that the dominant purpose of the land by virtue of its improvements is to either be for carrying out a commercial activity; or for other than residential purposes or mixed/secondary residential purposes. The dominant purpose is to be determined by reference to the visual, spatial or economic aspects of the use. Under the specific criteria of that category the land use code 11 - Single Shop, and code 17 – Restaurant are permitted uses. [44] If I look also at Category 7 I note that the general criteria includes land that could potentially be used by virtue of its improvements for mixed/secondary residential purposes. The specific criteria includes land use code 70 – Non Owner Occupied Residential, where the land is wholly residential classified land, and does not meet both the general and specific criteria of Categories 2 or 5. [45] If I look then at the definitions under that resolution of Council, I find as follows: “· Residential purposes means land which is used or intended for use solely as – (a) residential; and (b) for the exclusive use of one family, and may include self contained accommodation, either detached, semi detached or integrated, for the care and shelter of an aged or infirmed family -- 13 of 17 -- 14 member of the occupants. The gross floor area of any such self contained accommodation is not to exceed 50 square metres. · Mixed/Secondary Residential purposes means land which is used or intended for use predominantly for residential purposes and includes land described in the Brisbane City Council Land Use Codes for 2001/2002 for the purpose of – (b) 70 – Non Owner Occupied Residential. · Visual Spatial or Economic means attributes pertaining to the usage of land and used in determining the level of non residential activity being conducted on the premises for differential rating categorization purposes, or the nature of any activity conducted on the premises for General rate exemption determination. These attributes are used in conjunction with the assessment criteria for ‘Home Business’ described in Attachment ‘A’ of the Brisbane City Council Land Use Codes for 2001/2002. A property is determined to be carrying out a non residential activity where, in the opinion of the Council, one or more of the following attributes indicate a level of non residential activity, which distinguishes the property from a solely residential purpose. Each component is defined as follows: (a) Visual. The visual impact of any non-residential activity may have on the amenity and/or character of the neighbouring area. In measuring this characteristic, consideration would be given, but not restricted to, attributes such as signage, provision of car parking, increase traffic volume and the degree to which the premise differs visually from its neighbouring properties because of its non-residential activity. (b) Spatial. The proportion of the total land or building area which is dedicated to the carrying out of a non-residential activity. (c) Economic. Where a portion of the property, regardless of visual or spatial aspects, is used for non-residential activity which forms a portion of the occupant’s income. · Principal Place of Residence means a single unit dwelling that is the place of residence at which at least one person who constitute the owners of the land predominantly resides. In establishing the principal place of residence, Council may consider, but not be limited to, the owner’s declared address for electoral, taxation, government social security or national health registration purposes, or any other form of evidence deemed acceptable by the Council. Residential premises which have not, in the opinion of the Council met these criteria will be deemed a secondary residence. The following cases do not comply with the definition of a -- 14 of 17 -- 15 principal place of residence and refer to a single unit dwelling that is: (a) not occupied by at least one person who constitutes the owner/s, but occupied by any other person/s, whether in return for rent or remuneration or not, including members of the owners’ family; or (b) occupied by the owner of the property on a part-time basis and is not the owner’s principal place of residence,” [46] In respect of the subsequent resolution of rates and charges for the period 1 July 2002 to 30 June 2003, that document has no direct impact upon the categorization of the subject land at the relevant period commencing 1 July 2002. However I note that in the subsequent document the general criteria for Category 1 land has been maintained for residential purposes, regardless of the City Plan 2000 classification, and has maintained the requirement for it to be the principal place of residence of the owner. The overall intention of the later period resolution is to maintain the policy espoused in the previous document for Category 1 land, and specifies that the sole purpose must be for residential purposes. [47] In respect of Category 2 land the general criteria now specifies the “predominant use” of the land to be as previously defined; while the specific criteria relevantly again specifies that the use may be a single shop land use Code 11. The definition of “predominant use” under that later resolution of rates and charges, again relies on the visual, spatial and economic aspects of the use. The general criteria for Category 7 land is consistent with the previous resolution, but the specific criteria of that Category 7 now directs that land use code 61 (Mixed residential Purposes) and 70 (Secondary Residential Purposes) may be considered to exist, whether the land is “predominantly used” for residential purposes; rather than the earlier criteria which specified that the land be “wholly residential” classified. The second resolution would appear to provide some further discretion in respect of the use of the land. Decision: [48] Before proceeding to consider the categorization process, and whether there is some room for flexibility in assessing the use of the subject land, I turn first to the current zoning of the land. I note that it is agreed that the subject land at the relevant date of 1 January 2002 was zoned as Multi-Purpose Centre – Convenience (MP4). Under that business zoning the permitted use of the attached premises as approved by the Council was as a caretaker’s flat. Any use of the total premises as a stand-alone residential dwelling could -- 15 of 17 -- 16 only proceed subject to the approval of the Council. The history of the subject land supports that the intentions of the appellant have continued to be to seek a tenancy for some business purpose for the shop front. More recently that has been extended with the approval for the subject land to be used as a restaurant. [49] If I look then at the categorization process, I note that land can be included within the Category 1 area regardless of its classification under the current planning constraints, but only if the property satisfies the general criteria for that category. In respect of Category 1 it is mandatory that the land contains a single unit domestic dwelling, and also is the principal place of residence of the owner of the land. On that criteria I agree with Mr Morzone that the subject land does not satisfy those conditions, and accordingly it is not within the power of the Council, even if it sought to form such an opinion, to categorize the subject property as Category 1 at the relevant date. The Council is bound by its own resolutions just as the residents, unless it seeks to amend those directions. [50] If I look then at Category 7 I note that the Council does have the power to form an opinion which might lead it to a conclusion that the purpose of the subject land could, by virtue of its improvements, be potentially able to be used for “secondary residential purposes”. Under the specific criteria of Category 7 that would apply to the land use code 70 (Non Owner Occupied Residential). But under the definitions of that resolution of rates and charges the premises must be a single unit dwelling, that is not the principal place of residence of the owner. The current intended use of the subject land is not as a single unit dwelling, and is not used for that purpose. [51] But before a Category 7 use for a secondary residential purpose can be contemplated, the Council must also determine whether the wholly residential classified land does not meet the general and specific criteria of Category 2 or Category 5. As Category 5 relates specifically to CBD areas, that can be eliminated. However the test for whether the dominant purpose of the subject land does, or does not, meet the general criteria of Category 2 lands, must be ascertained in accordance with the visual, spatial and economic aspects of the use of the land. [52] If I consider then the surrounding streetscape adjoining the subject land, I find that the owner’s application of 11 October 2001 in respect of the approval for a restaurant land use code, provides some assistance. (Exhibit 2, page 240). That was later clarified by the joint inspection with the parties in the current matter. At October 2001 the adjoining property to the east at 13 Abbott Street contained four shops, including a laundry business and a dog grooming business. To the east of those shops was a two storey former shop now used as an extensive commercial operation for the Queensland Council of Carers, -- 16 of 17 -- 17 employing about thirty people; and to the east of that property at 95 Burns Street (a corner site) was an old corner shop, but now used as a residence since 1990. [53] To the south of the subject land at 38 Brooks Street is a new two storey showroom with residence above, which is used for both business and residential purposes in conjunction. However it would be fair to observe that the visual appearance of 38 Brooks Street would more appropriately be described predominantly as of a residential nature. By the appellant’s own description of that environment the subject land demonstrates visually a business type activity. The photographs support that opinion. [54] While the area of the “caretaker’s flat” is larger than the shop front, its secondary purpose as a use associated with the business activity, detracts from its influence in determining the dominant purpose of the site. Because of the limited economic use of the premises over the extended period of 13 years; and the use of the premises as both a shop and then separately for residential purposes only, I get little assistance from those uses. However I agree with Mr Morzone that the intentions of the owner, and the approvals of the respondent, both support that the likely use of the building was for a business purpose. On that basis I agree that the property does satisfy the general criteria for Category 2, and cannot be a Category 7 use under its current land use approval. Summary: [55] In summarizing this matter I believe that at the heart of Mr Copley’s concerns is an existing approved use of the subject land as a shop, which because of its location away from major traffic flows, is experiencing a decline in market potential, which is not unusual with small convenience centres. Perhaps the change of use in the future to a restaurant, which by its nature is more of a destination type commercial activity, may overcome some of that disadvantage. Or alternatively a single unit residential use as a secondary residence of the owner may also be a solution. However at the relevant period of 1 January 2002 the subject land should be categorized as Category 2 (shop with attached caretaker’s flat). NG DIVETT MEMBER OF THE LAND COURT -- 17 of 17 --